“Extraordinary Circumstances:” The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform

Michael Gerhardt *

Richard Painter **

On May 23, 2005, seven Republican and seven Democratic senators banded together to block a movement that would have changed the Senate forever. Because the Senate at that moment was almost evenly divided over a radical plan to revise the rules of the Senate to bar judicial filibusters without following the Senate’s rules for making such a revision, the “Gang of 14,” as the senators became known, controlled the future of judicial filibusters. They each agreed not to support a filibuster of a judicial nomination unless there were “extraordinary circumstances.” For the remainder of George W. Bush’s presidency the agreement held and there were no filibusters of judicial nominations. But, in the past two and a half years, several developments have threatened the continued viability of the agreement of the Gang of 14: Five members of the Gang are no longer in the Senate; Democrats took control of both the House and the Senate in 2006 and managed to maintain a majority of seats in the Senate, albeit by a thinner margin, in 2010; and delays and obstruction of judicial nominations re-intensified after President Obama came into office. Perhaps most importantly, the remaining Republican members of the Gang of 14 have each found “extraordinary circumstances” justifying their support of some judicial filibusters.

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* Michael J. Gerhardt, Samuel Ashe Distinguished Professor in Constitutional Law & Director, Center for Law and Government, University of North Carolina School of Law.

** Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School.